November 01, 2007

Whitehouse Sniffing around Bush's Executive Orders

by emptywheel

Remarkably, Sheldon Whitehouse asked Mukasey very few written questions. But I am intrigued by this one.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

Whitehouse, that sneaky guy, is not letting on which Executive Order he believes Bush may have violated, though it's clear that's the genesis of the question. I'd say it relates to Bush's recent executive order on torture, since that's the focus of so many questions for Mukasey. But the timing is off--Bush only signed that EO recently, so he hasn't had much time to violate it.

Furthermore, the structure of the question doesn't sound like Whitehouse is addressing torture. It's not like Bush would act contrary to the torture EO; he'd authorize actions contrary to it.

So what do you think it is? The first thing that comes to mind, for me, is EO 13292, which governs classification and declassification. Cheney has violated that EO on a number of counts. There's Cheney's claimed exemption because he's a Fourth Branch. And, of course, someone violated it when they insta-declassified Valerie Wilson's identity the National Intelligence Estimate, though it's not clear whether Bush did or Cheney did or Libby just lied about it (again).

But again, this gets us into grammar problems. Whitehouse is talking about Bush violating his own EO. I know it's hard to keep Bush and his puppet-master straight sometimes, but Whitehouse is a pretty sharp cookie and I imagine he's up to the task. Though, there have been so many instances where the White House insta-declassified classified information to serve their propaganda needs, I still think this is a leading candidate.

In any case, I suspect Whitehouse's comment suggests two things. First, the Senator is sniffing around some instance of Bush violating his own EO (go Whitehouse). And second, my leading bet is on Bush's rules governing classification and declassification.

Comments

I have no idea what Whitehouse is on to this time, but I have no doubt that it's important and no doubt that he has or will get the goods on Bush for whatever it is. As a resident of Rhode Island, I'm extremely proud of the job that our junior Senator has been doing in working hard to expose some of the worst outrages of this administration's subversion and perversion of the rule of law and our justice system. Like you said: Go Whitehouse!

Before I got to your guess as to which EO it was, I had already reached the same conclusion. My money is on EO 13292.

BTW, do you think there's any chance that the insiders are plotting a quick whiz-bang sudden reversal, with, in quick succession,
* Pelosi puts impeachment back on the table
* An already-prepared set of articles of impeachment magically appears on the table over at the House Judiciary Committee,
* which speedily votes the pre-prepared articles to the floor in a block, and
* Pelosi immediately schedules the articles to come up for discussion?

As much as I'd like to see a rush scenario, I really do want at least a month of "investigation" with the special subpoena powers an impeachment investigation has, to drag incriminating information out of the White House Fact Fort. The public, after all, needs to be brought along. I think they'll come, and gladly, but not if rushed.

13292 - for reasons I've mentioned in other comments, but for example:

The EO says illegal activity cannot be classified.

There was a period of time when the AGs office was saying that "teh program" was illegal.

As a result, information about "teh Original program" became ineligible for classified treatment under the EO at that point in time.

Ditto torture and harsh techniques. If the President was ordering a program to continue or a process to take place and OLC was saying that program/process was not legal - - it doesn't qualify for classified treatment without amending the order.

Mary said: "If the President was ordering a program to continue or a process to take place and OLC was saying that program/process was not legal - - it doesn't qualify for classified treatment without amending the order."

Junya said: "Dagnabbit, jest when ah need a pet attorney general, Fredo runs for Paraguay. Now with Mukasey in trouble, ah got no protection. Somebody get Deadeye on the phone and ask him if Scooter needs a job."

Mad Dogs - don't I wish he had no protection! But with Bradbury at OLC and Keisler as Acting AG, he's covered for pretty much anything. Now. Which doesn't address then. And how you classify a program that your OLC has said is illegal.

Let's see...POTUS violates POTUS's own EO. EOs are not legal documents, at least not until they are the subject of (what?) a criminal inquiry? So, if the POTUS breaks his own non-law, is he a law-breaker? My head is spinning.

Not just about EOs, but they're starting to smell smoke...a lot of smoke. Smoke that may mean fires about to break out. Firestorm kind of fires. Such as:

1. Fredo's name on a GJ indictment.
2. Turdblossom's name on same GJ indictment.
3. Many other former Admin and DOJ folks' names on GJ indictments such as Monica Goodling, Sara Taylor, etc.

And Junya's panic attack is more about the effective loss of control he has over the DOJ.

Notwithstanding the acting AG Keisler and acting OLC head Bradbury, it may be that there is a growing revolution amongst the professional DOJ folks (as opposed to the political appointees), that an acting AG and acting OLC don't have the cojones to effectively stop.

It may be that Keisler and Bradbury are "in control" in name only, and that Junya, Deadeye and Addington are panicked by more dominant personalities at the DOJ who are ready to kick Admin ass.

Therefore, Junya and crew desperately need to have a "real" AG onboard immediately to fight the firestorm awaiting eruption.

This is probably more of a WAG than a SWAG, but it wouldn't surprise me that we only know of the tip of the iceberg.

I'm with Canuck Stuck in Muck. I am having a difficult time following some of this. POTUS issues an Executive Order, but then violates it himself. Is that really a criminal violation? What is the implication?

I didn't realize that Cheney's 4th Branch declaration included not being subject to Bush's Executive Orders!

http://www.sourcewatch.org/index.php?title=Unitary_Executive_Theory

In June 2007, Vice President Dick Cheney claimed that he is neither a member of the executive branch of the U.S. government, nor required to comply with executive orders issued by President George W. Bush. In turn, President Bush—consistent with his claim that presidential power "must be unilateral, and unchecked" — also claims that he is not required to comply, as neither the president nor the vice president are "agencies" of the executive branch.

"Should an Executive Order apply to the president"
means that
he will accept the argument that
executive orders do not apply to the president.
Rules promugated by emperors
are directives that apply only to other people.

POTUS issues an Executive Order, but then violates it himself. Is that really a criminal violation? What is the implication?

Expanding on prior post, here's the implication as I see it. An Executive Order is just a gap filler, where the President gives directions in an area where Congress hasn't spoken. So no, I don't think there is a "criminal violation" for the PRESIDENT to act differently, but Executive Branch employees are required to act in accordance with the orders.

So take a look at the Classification Order, 13292. http://www.fas.org/sgp/bush/eoamend.html

That order specifies that certain things will not treated as classified or secret.

Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security

What do we know about "teh program"? Well, one thing we know is that there was at least some period of time when the OLC and AG deemed the program illegal, or, to use Comey's parsing, "having no justification under law" In addition, we now have pretty much everyone who has seen what is going on saying that there were no AG certifications given that complied with applicable statutes AND we have a President and DOJ requiring immunity for telecoms (something that is not required if laws weren't broken) and a Reagan Judge in CA saying that no idiot would think the program wasn't breaking the laws (or words to such effect).

SO - how do you "classify" a program that, at least in its incarnations for a period of time the AG's office said was illegal, under the existing EO?

Can the President, in violation of his own published EO, demand Administration Officials to act in violation of that order without amending that order? And if not, what does it say about a President who amends his classification order to say that the President's illegal activities can be classified?

And doesn't that frame for the courts the absolutes on the boundaries of whether or not we are a nation of laws or of men?

Isn't that a part of the issue with el-Masri and Arar as well? They are caught in the circular catch-22 that, if their abductions and tortures were to be found illegal, the supporting information being withheld by the Department of Justice&kidnap&torture as "state secrets" couldn't be withheld, but with the info withheld, they can't prove their case (at least el-Masri in particular) on what was done to them.

And each of those DOJ filings in the telecom suits, etc. invoking state secrets - - if they were filed with the knowledge that there was a period of time when the program was deemed illegal and no information about the illegal period is being released either - - are those affidavits fraud on the court under the existing EO which promises the court and the nation that illegal activity won't be classified?

Not so much a criminal violation - as an opportunity to get at or make public (without recourse) information about the illegal activities. And some whistleblower cover along with it.

That's all jmo and take, fwiw. But its where I think Whitehouse may be heading, especially since he's seen the docs on teh program and other things with his position on Intel.

Mary, my off the cuff opinion is that it not only has constituted a continuing violation of 13292, but is indeed criminal as well as obstruction of justice and fraud, based on exactly the analysis you make.

Does EO 13292 also provide procedures for declassifying documents (or facts?), such as "declassifying" the covert nature of Valerie Plame Wilson's job at the CIA, or the leaking of other classified documents, as Dubya, Cheney and the gang have done whenever it has suit their purpose?

The checks on EOs on classification probably have something to do with the clearances given to employees and agencies overseas; IIPA. Wiavers(congressional and presidential) for countries that have US and UN sanctions for certain agencies and the financing of those countries via the State Department and equal access for other agencies and groups; USAID is banned, so they use another agency or military financing. The money goes to the agency instead of the military because of transfers from the military foreign finance program that continues to give money like the excepted agency, but it is transferred by Congress before it gets to the country to the excepted agency who has the only access to the country, except for the military; the money goes to the agency instead of the military(personnel).

The waivers are the clearances are what IIPA and Plame where; violating IIPA and violating it again to get out of a bad situation for another employee. Plame is forgiven and Ames was vindacted for his 'treason,' which really isnt' because IIPA was violated again. The checks seem to focus on the President, when it is actually CIA(Plame & Ames) violating IIPA. The same thing is going to happen again. CIA is going to violate another agency's IIPA through DoJ and it will be covered up again. That costs the US alot of it's spy shit.